Debates

This house would abolish plea bargaining

This house would abolish plea bargaining

A plea bargain is a process in which the defendant arranges a 'deal' with the prosecution. A plea bargain essentially means that a defendant charged with multiple crimes will plead guilty to a certain charge in order to escape going to trial for a more serious charge. In the United States, the majority of criminal cases are settled through plea bargains.

It is important to recognize, however, that while the majority of criminal cases in the United States never go to trial that this does not mean that in the majority of plea bargains include an agreement to testify in court. There have been some notable cases where accused criminals agreed to testify against co-conspirators with the understanding that they would plead guilty to less serious charges. Oddly, both notable cases involved athletes: Michael Vick and O.J. Simpson. In both cases, prosecutors sought incriminating testimony in order to improve their case against the star athletes.

However, it is worth keeping in mind that in most cases plea bargains are entered into simply to avoid going to trial. Criminal trials are basically winner take all propositions, which make them relatively risky for both prosecution and defense. Further, in the United States, where the criminal justice system is crowded with cases, plea deals are sometimes offered simply to resolve cases quickly and more efficiently. Whether this results in defendants pleading guilty to crimes they didn't commit or to lesser crimes than they actually did commit is on open question, one that ought to be researched and explored by debaters preparing to debate these cases.

Could plea bargaining in exchange for testimony be just in other countries but not in the United States? Is there something that makes plea bargaining in the United States different from plea bargaining anywhere else? And if so, what is it? If not, then what's the importance of this phrase?

Criminals will give faulty information for a reduced sentence

Point

Criminals will do anything if it means they are better off as a result, including lying under oath. Firstly, as convicts these people have already proven themselves to have a faulty moral character. Secondly, defendants have an incentive to shift blame to reduce their own culpability. By incriminating another member of their group, informants are able to tell a story that is favourable to them, lessening their own moral culpability and reducing the cost they have to pay for committing a crime. In order to secure these benefits, cooperating witnesses have every incentive to fabricate evidence. James W. Haldin writes: “An offer of prosecutorial leniency enhances the natural tendency of an accomplice to lie by providing an incentive to offer testimony that is favorable to the prosecution…. the witness must satisfy the prosecutor in order to obtain the benefit of his bargain”[1]. Moreover, it is almost impossible to verify whether or not their information is accurate. Not only do accomplice witnesses have a motive to fabricate, they often have an ability to fabricate and to fabricate convincingly. They can manipulate their version of events without arousing much suspicion as they know all the details of the crime and which aspects of the enterprise are verifiable so where they can risk lying[2].

[1] James W. Haldin. Toward a Level Playing Field. Washington and Lee Law Review.

Counterpoint

Criminals have just as much chance of incriminating themselves with false testimony, which acts as a deterrent against providing faulty information. Accomplices are unaware of what other evidence there may be in the case, which may contradict false stories. This means that "[A]n accomplice who is unaware of the other evidence (or the lack thereof) has a selfish reason not to fabricate testimony. If the accomplice makes things up, his testimony could conflict with other evidence, and the trial judge, who usually will determine the accomplice's sentence, will see that he is a liar and treat him accordingly. Those arguments have proven effective, and defendants have been convicted of murder in federal court when the only evidence of their participation in the crime was the assertion of an accomplice"1. Moreover, accomplices have an incentive to "tell the truth and nothing but the truth" since they are sworn-in under-oath and lying under oath constitutes perjury which is punishable by a prison sentence. This would nullify any benefit to giving the testimony, as instead of receiving a less harsh sentence they would receive a harsher one, therefore providing a strong incentive to tell the truth.

1Jeffries, John C. "The Federalization of Organized Crime: Advantages of Federal Prosecution". 1995 University of California

Plea bargaining violates due process

Point

Testimony-based plea bargaining forces the defendant to make an agreement with the government which can be broken by the prosecutorial team at any time, leaving no check to ensure that basic rights are protected. Pamela Metzger argues "the government is to be the sole judge of whether the defendant has truthfully and completely cooperated. The decision as to whether the cooperation rises to the level of substantial assistance will be left to the sole discretion of the prosecutor's office. Often a cooperation agreement does not specify the extent of the departure the government will request. And, even if it did, that request would not be binding upon the sentencing court. Finally, if the defendant fails to perform under the terms of the agreement, the prosecutor's office retains the right to use the defendant's statements against him at a subsequent prosecution for false statements"1. Defendants that enter into plea agreements assume a massive risk insofar as their testimony can be deemed insubstantial at any point of time and then used to convict them in a later trial.

1 Pamela Metzger, "Beyond the bright line: A contemporary right-to-counsel doctrine," in the Northwestern University Law Review, Summer 2003.

Counterpoint

If an agent consents to certain treatment, that treatment is justified. Desert stems from the choices we make rather than external factors, so consent is a sufficient condition for the justness of an action. Since plea-bargaining by definition involves an agreement from both sides, plea bargaining in exchange for testimony is just because both parties consent to it. Individuals involved in plea deals make informed decisions. There are safeguards including legal representation at every stage, even before a plea is registered, and guidance on sentencing to help to ensure that defendants make an informed and voluntary decision. Judges also have to ensure that the defendant is aware that a guilty plea will mean that he forfeits his right to a trial and that he knows the full range of penalties he faces upon conviction1.

Point

Most cases involving plea-bargaining for testimony are crimes of collusion; that is, prosecutors most often strike deals with members of organized crime groups in order to pin down the leader. As such, informants have incentives to lie in order to either improve their own standing in organized crime’s hierarchical structure or to weed out competition. R. Michael Cassidy confirms: “Because the government frequently pursues cooperation by lower echelon criminals against the higher-ups in an organization, some witnesses may view cooperation with the government in a criminal case as a means to reorder a previously hierarchical relationship…. the informant may be manipulating the system for personal or pecuniary gain, such as a desire to take over the joint criminal enterprise for himself or an ally after helping to put the confederate away”[1]. Even if the plea bargain gives accurate information the government should not be helping lower ranking members pursue their own ambitions by using the state.

Counterpoint

Testimony in organized crime trials can easily be verified. The law enforcement agencies simply have to be thorough in checking testimony. Even if the testimony is uncorroborated when it comes to the particular act the testimony should provide detailed context to allow the jury to determine how credible it is. The testimony is also unlikely to be standing on its own so there will be other areas of the testimony which can be corroborated by other evidence. For example the rules of the organization could help establish if the witness was in a position to know about the criminal act.1

1 Jeffries, John C. "The Federalization of Organized Crime: Advantages of Federal Prosecution".

Point

The practice of plea-bargaining for testimony assumes that the levels of culpability within a group are totally different. In other words, it assumes that some individuals have negligible levels of culpability and so can be bargained with while others are fully responsible and so deserve to be prosecuted to the fullest extent. But, this division is false because it ignores the collective nature of crimes of collusion. Solidarity in the mob and decision-making procedures in a corporation both change individual intentions by creating a group-based context for one’s intentions that is radically different from the context of personal experience outside of the group. As a result the actions cannot be fully explained by reference to the intentions of individual, isolated people. It therefore makes sense to talk, in a limited way, about the collective intent of social groups.[1] So, allowing testimony-based plea-bargaining disproportionately lays blame in the hands of the ringleaders of the organized crime group. Subordinates, by contrast, become witnesses for instead of enemies of the state and get off with extremely light sentences. However, just because individuals are in an authority position does not mean that they are the most responsible for that crime. Morally, there is no distinction between coming up with a crime and carrying it out. In fact, subordinates are often more dangerous because they have shown that they are willing to carry out heinous crimes. Therefore, giving subordinates more lenient sentencing disregards the collective nature of the crime and so de-links culpability and punishment.

Counterpoint

Firstly, using testimony from accomplices helps catch other guilty criminals and allows the state to administer retributive punishment on them. This is more important because with plea-bargaining there is proportional punishment for one criminal and lower punishment for another, whereas without it there is only proportional punishment for one criminal and no punishment for another. Obviously, some punishment for crime is better than no punishment, even if it isn't proportionally retributive. Second, plea-bargaining for testimony ensures that the guilty are caught and not the innocent. Without it, the state runs a greater risk of convicting innocents. Convicting innocents creates a massive retributive gap since innocents by definition did not do anything warranting punishment and thus are due no retribution. Third, reduced sentencing for those members who followed orders to do the organization's dirty-work is justified. Henchman of the organization merely follow orders and are thus not fully responsible for the actions they take due to their diminished decision-making, and this lower level of responsibility should be reflected in sentencing.

Plea-bargaining in exchange for testimony reduces organized crime

Point

Plea-bargaining in exchange for testimony is a vital tool against organized crime. In organised crime the most culpable individuals rarely do the dirty work themselves. While the leaders are the ones who are ultimately responsible they have intermediaries that do the work. Their participation is limited to being behind the scenes control and guidance. This makes it very difficult to prove their guilt as there will not be eyewitnesses or forensic evidence linking them directly to the crime.1 The only access to leaders of organized crime police have is through henchmen caught for committing crime on behalf of the organization; as such, accomplice testimony serves as a unique source for criminal links. Merely capturing those who perform the dirty work does not solve the overriding criminal problem, which poses a greater threat to society. Organized crime is the worst form of crime for two reasons. First, since an organization is behind an action rather than an individual, it inherently is carried out with much greater force and power. Second, criminal organizations, like corporations, are self-perpetuating due to the dispensability of their members, so they will last longer; thus, solving for such crimes is more important on a time-frame. Criminal organizations commit murder, sell drugs, and promote violence, among many other harmful actions.

1 John C. Jeffries. The Federalization of Organized Crime: Advantages of Federal Prosecution

Counterpoint

As previously argued, using criminal testimony for organized crime is imprudent as they can use the system to change the hierarchy for their benefit. Moreover, implanting hired informants into criminal organizations could attain more accurate information. Individuals, who are connected to the criminal underworld and provide information to authorities on an ongoing basis, may be called "confidential" informants, because their identities may never become known to anyone except the agents to whom they provide information. Unlike in cases of individuals working with prosecutors in plea bargains confidential informants are not always themselves the targets of an investigation1. As a result they are a much better long term source of information.

1 Schreiber, Amanda J. Dealing with the Devil: An Examination of the FBI's Troubled Relationship With its Confidential Informants. Columbia Journal of Law and Social Problems. (Summer, 2001)34 Colum. J.L. & Soc. Probs. 301.

Plea-bargaining is instrumental in convicting criminals

Point

In cases where the physical evidence to convict does not exist, plea bargaining is essential to build a case against those considered most culpable. Offering rewards of leniency for cooperation may be necessary to overcome problems such as intentional memory loss, loyalty towards compatriots, and fear of reprisal. The plea bargain makes possible the detection of crimes that may otherwise go unsolved or even unnoticed, allows for the apprehension of more dangerous criminals, and minimizes the risk of acquittal. In 2010, Edward Allen O'Connor pleaded guilty to much-reduced charges after agreeing to testify against his co-defendant who prosecutors felt was the more culpable1. Finally, accomplice testimony provides the jury with the rich detail of a criminal enterprise that may not otherwise be exposed through bits and pieces of circumstantial evidence. For each of these reasons, the power to flip an accomplice witness may indeed be the single most important weapon in the government's arsenal."2

Counterpoint

For plea-bargaining to be useful, there must be absolute certainty the accomplice isn't lying, else innocents may be falsely convicted. This is confounded by the fact that criminals have an incentive to lie, as Yvette Beeman argues: "Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case"1. Finally, plea-bargaining encourages crime because individuals know they can commit crimes and receive lesser sentences, meaning there is less of an incentive not to break the law.

Plea-bargaining is a useful deterrent

Point

The choice to enter into a cooperative crime endeavour is only made when criminals are able to trust one and other. This includes trust in situations wherein one criminal is likely to snitch on another. In order to be able to cooperate in crime there needs to be trust that others will continue cooperating. “In essence, co-operators trust that others will follow their collective, rather than instrumental, rationality… the decision to cooperate is a decision to trust.[1] Since plea bargaining offers an incentive for the accomplice to break his agreement with the co-conspirator, individuals prior to committing to a cooperative crime will be more hesitant to trust others, and thus, be less likely to commit the crime in the first place. Moreover, having plea bargaining in exchange for testimony will aim to deplete the pool of willing counterparts to cooperative crime. This necessarily decreases the overall cooperative crime rate, since the presence of willing and able criminal partners provides the source for the growth of crime.

Counterpoint

The fact that there are still crime organizations in countries that have plea-bargaining in exchange for testimony proves that criminals still believe they can trust their co-conspirators despite the existence of the plea bargain. Moreover, criminals break the law knowing there is some probability that they will be found out or that some co-conspirators may confess, with or without plea-bargaining, so this is a risk that is not unique to where there is plea bargaining in place. Criminals may not be aware of plea-bargaining in exchange for testimony. If individuals are unaware that others have incentives to snitch, there's no way for plea-bargaining to successfully deter. Finally, if individuals know that others can lie during a plea bargaining, they know that individuals could lie to prosecutors and lead them in the wrong direction, misdirecting them and making it harder to catch criminals.

Voting Results

Bibliography

Beeman, Yvette. "ACCOMPLICE TESTIMONY UNDER CONTINGENT PLEA AGREEMENTS." 1987 Cornell Law ReviewCassidy, Michael. The Problem of Implied Inducements. 2004 Northwestern Law Review.Haldin, James W.. Toward a Level Playing Field. Washington and Lee Law Review.Jeffries, John C. "The Federalization of Organized Crime: Advantages of Federal Prosecution". 1995 University of CaliforniaMay, Larry.

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